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OPINION 



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ATTOMEY GENERAL STANBERT, 



UNDER THE 



EECONSTKUCTION LAWS. 



INTERPRETING 



THE STATUTORY CLAUSES HAVING REFEEEXCl'^^ ELIGIBILITY, UNDER 

THE PROVISIONAL GOVERNMENTS OF tHI^^^'^^^^^ STATES, 

FOR SUFFRAGE AND OFFICE, AND E'^^'^^^^^ ^^^ 

FURTHER CONSIDERATION QUESTIONS 



UNDER OTHER FROVISIO^®' 



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WA^SHINGTON 

GOVERNMENT PRINTING °^^'^^* 

, 1867. 



\ 



Lets 



By transfer 
n:A.:23 1908 



/^W^ OPINION 



(IF 



ATTOMEY GENERAL STANBERY, 



JNDER THE 



KECONSTEUCTION LAWS, 



INTERPRETING 



THE STATUTORY CLAUSES HAVING REFEKENX'E TO ELIGIBILITY, 

UNDER THE PROMSIONAL GOVERNMENTS OF THE SOUTHERN 

STATES, FOR SUFFRAGE AND OFFICE, AND RESERVING 

FOR FURTHER CONSIDERATION QUESTIONS 

UNDER OTHER PROVISIONS. 



WASHINGTON: 

GOVERNMENT PRINTING I O F F I C K . 
18 6 7. 



^^^^^^ 



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K Attorney General's Office, 

May 24, 1867. 
r The President. 
Tb "^ !?IR : I bave the honor to state my opinion upon the questions arising 
;^ , nnder the act of March 2, 1867, entitled " An act to provide for the 
more efficient government of the rebel States." and the act of March 
23, 1867, entitled "An act supplementary to an act entitled 'An act 
to provide for the more efficient gavernraent of the rebel States,' " 
upon which questions the military commanders of the districts in 
which those States are comprised have asked your instructions. 

The first and most important of these questions may be thus stated: 
Who are entitled to vote and who are disqualified from voting at the 
elections provided for or coming vvithin the purview of these acts? 

The first provision upon this subject is to be found in the fifth 
section of the original act, and declares the qualifications and dis- 
qualifications of the voters for the election to be held for delegates to 
the proposed constitutional convention in each State, and for the elec- 
tion to be held for the ratification of the constitution that may be 
framed by such convention. That section provides that the delegates 
to such convention shall be "elected by the* male citizens of said 
State twenty-one years old and upward, of whatever race, color, or 
previous condition, who have been resident in said State for one year 
previous to the day of such election, except such as may be disfran- 
chised for participation in the rebellion or felony at cwmraon law," 
and that the same qualifications so required for the election of the 
delegates shall also be required upon the election for ratification. The 
proviso to this section also excludes from the right to vote for dele- 
gates to the convention every person excluded from the privilege of 
holding office by an amendment to the Constitution of the United 
States proposed by the Thirty-ninth Congress, and known as Article 
XIV. 

The sixth section provides "That until the people of said rebel 
States shall be, by law, admitted to representation in the Congress 
of the United States, any civil governments which may exist therein 
shall be deemed provisional only, and in all respects subject to the 
paramount authority of the United States at any time to abolish, 
modify, control, or supersede the same; and in all elections to any 
office under such provisional governments all persons shall be entitled 
to vote, and none others, who are entitled to vote under the provisions 
of the fifth section of this act ; and no person shall be eligible to any 
office under any sucih provisional governments who would be disquali- 
fied from holding office under the provisions of the third article '^ 
[section] "of said constitutional amendment." 

It is to be observed here that the qualifications of a voter are, by 
the fifth section, limited to the election of delegates to the convention, 
and to the question whether such convention shall or shall not be 
held, and that no qualification is declared for a delegate so to be 



4 

elected; but by the sixth section the same qualifications as to a voter 
are required in all elections to any office under the existing provisional 
governments during their continuance, and, as to eligibilitij at such 
elections, certain classes are excluded. 

The first section of the supplemental act provides that " the com- 
manding general in each district * * * shall cause a regis- 
tration to be made of the male citizens of the United States, twenty- 
one years of age and upwards, residents in each county or parish in 
the State or States included in his district, which registration shall 
include only those persons who are qualified to vote for delegates" 
by the original act. The person offering himself for registration is 
also required to take an oath, which, for convenience, I now divide 
into paragraphs or sections, preserving as near as may be the language 
of the act. He must swear, or affirm, as follows : 

1. That he is a citizen of the State, and has resided in said State 
for months next preceding the day when he takes the oath, 
and that he now resides in the county of , or in the parish of 

, in said State. 

2. That he is twenty-one years old. 

3. That he has not been disfranchised for participation in any 
rebellion or civil war against the United States, nor for felony com- 
mitted against the laws of any State or of the United States. 

4. That he has never been a member of any State legislature, nor 
held any executive or judicial office in any State, and afterwards 
engaged in insurrection or rebellion against the United States, or given 
aid or comfort to the enemies thereof. 

5. That he has never taken an oath as a member of the Congress of 
the United States, or as an officer of the United States, or as a member 
of any State legislature, or as an executive or judicial officer of any 
State, to support the Constitution of the United States, and after- 
wards engaged in insurrection or rebellion against the United States, 
or given aid or comfort to the enemies thereof. 

6. That he will faithfully support the Constitution and obey the 
laws of the, United States, and will, to the best of his ability, encour- 
age others so to do. 

The second section of this act provides that after the completion of 
this registration in any State, and after at least thirty days' public 
notice of the time and places which the commanding general shall 
appoint and direct, an election shall be held for delegates to a con- 
vention; and a rule is given to fix the number of the delegates to be 
elected and the appointment of these delegates in the proper civil 
subdivisions, giving to each subdivision representation in the ratio 
of the registered voters. 

The third section provides that at the election for delegates the 
registered voters shall vote for or against the convention. 

The fourth section provides for the election to ratify the constitu- 
tion that may be framed by the delegates, and the right to vote at 
this election is confined to the persons registered. 

The sixth section provides that all elections in the States mentioned 
in the said original act shall, during the operation of such act, be by 



ballot, and all officers making the said registration of voters and con- 
ducting said elections shall, before entering upon the discharge of 
their duties, take an oath prescribed by the act of July 2, 1862, enti- 
tled " An act to prescribe an oath of office." 

The first consideration which requires my attention upon the ques- 
tion as to the right to vote, arises upon the registration of voters. 
The question of qualification or disqualification is fixed by. the regis- 
tration. No power is given to any other board or any other authority, 
after the registration is completed, to change the registry. The per- 
sons whose names are admitted to registration are entitled to vote, 
subject to the limitation hereinafter mentioned, and none others. 
This registration must be completed before the first da}' of September, 
1867. The functions of the board as a board of registration cannot 
be extended beyond that fixed time; but after that the duties which 
remain to be performed by the officers composing this board are 
limited only to holding and superintending* the elections and making 
the proper returas to the commanding general. 

This brings us to the direct question. Who are entitled to registra- 
tion ? 

1. As to citizenship and residence. No person is entitled to vote 
who shall not be resident in the State for one year previous to the 
day of election. It is not necessary that this previous residence for 
a 3'ear should exist at the time the person applies for registration. 
A person in all other respects entitled to vote is entitled to registra- 
tion, although he has not, at that time, been a resident of the State 
for a full year ; for we find in the supplemental act that the oath as 
to residence does not require the applicant to swear that he has then 
been a resident for a year, but only requires him to state the number 
of months of his residence, contemplating a period less than, as well 
as a full term of, twelve months. Therefore, as to such a person, so 
registered, if it happen at any election subsequently to be held, that 
the time of residence, counting from the day of election, does not 
cover an entire year, he cannot vote at such election; for this sup- 
plemental act does not, as to residence, change the provisions of the 
original act, as it is expressly provided by it, as to registration, that 
it shall include only those who are qualified to vote by the original 
act. To carry out the purposes of the law in this respect as to resi- 
dence, the board of registration should note opposite the name of 
the person whose residence has not extended to the full term the 
exact time of his residence. 

As to citizenship. The qualification stated in the original act is 
citzenship of the State; but by the first clause of the first section in 
the supplemental act, the registration is to be made of the male citi- 
zens of the United States; and as to the oath, the applicant is only 
required to swear that he is a citizen of the State. 

I am of opinion that the phrase citizen of the State, as used in the 
oath, is intended to include only such persons as are citizens of the 
United States and citizens of the State; and that an alien who has not 
been riiade a citizen of the United States cannot safely take the oath. 
But, as the board of registration have only authority to administer 



6 

the prescribed oath, they cannot require any further oath or proof as 
to citizenship, and if an alien, not made a citizen of the United States, 
takes this oath he takes it at his peril, and is subject to prosecution 
for perjury. 

2. As to age. No one is entitled to registration who is not at least 
twenty-one years of age on the day that he applies for registration. 
In this respect qualification as to age differs from the qualification as to 
residence, and the fact that majority must exist at the date of regis- 
tration has relation to the day of registration, and not to the day of 
the subsequent election. 

3. Next as to disfranchisement. I shall consider the various 
clauses of disfranchisement according to the order and division into 
sections hereinbefore stated. And, first, as to the general clause 
declaring disfranchisement. 

The fifth section of the original act denies the right to vote to 
"such as may be disfranchised for participation in the rebellion or 
for felony at common law." The words here used," in the rebellion," 
must be taken to mean the recent rebellion; but the supplemental 
act enlarges the disqualification, and requires the applicani, to swear 
that he has not been disfranchised for participation in any rebellion or 
civil war against the United States, nor for felony committed against 
the laws of any State or of the United States. 

What, then, works a disfranchisement under these provisions? 
Whether we consider this disability as arising out of participation in 
a rebellion or the commission of a felony, the mere fact of such par- 
ticipation or of the commission of the felonious offence, does not of 
itself work a disfranchisement. It must be ascertained by the judg- 
ment of a court, or by a legislative act passed by competent authority. 
Disfranchisement for felony committed against the laws of a State or 
of the United States, consequent on a conviction in the courts either 
of the United States or of a State, or declared by the laws of either, 
would be fatal under these acts. 

I am not aware of any law of the United States which works dis- 
franchisement as to the right of suffrage, by force of the act itself, 
nor does such a consequence follow from the conviction for treason, 
or conspiracy to commit treason, or for any other act of participation 
in rebellion. The provision in the Constitution of the United States, 
as to treason against the United States, does not declare what shall 
be the punishment on conviction of treason. That is left for Congress, 
with the limitation that corruption of blood shall not follow as a 
consequence, or any forfeiture, except during the life of the party. 
Congress, in the exercise of its power to declare the punishment, 
has limited such punishment, as a consequence of conviction, to the 
penalty of death, or imprisonment and the manumission of slaves 
owned by the party, and to disqualification from holding any office 
under the United States. I am not advised of any statute now in 
force in either of these ten States, except perhaps Virginia, which de- 
clares disfranchisement as to the right of suffrage by force of the act 
itself. 

4, 5. The fourth and fifth sections maj' be considered together. 



The party applying for registration must swear "that I have 
never been a member of any State legislature, nor held any executive 
or judicial office in any State, and afterwards engaged in insurrection 
or rebellion against the United States, or given aid or comfort to the 
enemies thereof; that I have never taken an oath as a member of the 
Congress of the United States, or as an officer of the United States, 
or as a member of any State legislature, or as an executive or judicial 
officer of any State, to support the Constitution of the United States, 
and afterwards engaged in insurrection or rebellion against the United 
States, or given aid or comfort to the enemies thereof." These 
clauses of the oath, in effect, extend the disfranchisement beyond 
the provisions of the original act and the prior clauses of the oath 
itself, in the important particular that neither a conviction nor judg- 
ment of a court, nor an express legislative enactment is required to 
establish the fact of disfranchisement. In legal parlance, disfranchise- 
ment under these clauses of the oath results from matters in imis. 
But, in one respect, these clauses limit the generality of the original 
act as to disfranchisement. The original act contemplates disfran- 
chisement arising from participation in a rebellion. Whereas dis- 
franchisement under these clauses does not arise from participation 
in rebellion alone, but other elements must concur; that is to say, the 
holding of certain offices, or the taking an official oath by certain 
officers, and afterwards participating in rebellion against the United 
States. 

The consideration of these two clauses leads to two distinct subjects- 
matter of inquiry. 

First. What offices or officers are comprehended ? 

Second. What acts amount to engaging in insurrection or rebellion 
against the United States, or giving aid or comfort to the enemies 
thereof? 

I will first consider what offices or officers are comprehended. 

As to some officers there is no room for doubt. Members of a State 
legislature or members of Congress are clearly enough designated. 

The question might, however, arise whether a convention held in 
a State for the framing or amendment of its constitution would answer 
to the description of a State legislature within the meaning of this 
act. Such a convention, although it is clothed with legislative power, 
cannot properly be denominated a State legislature. And in the acts 
now under consideration, a convention and a legislature are expressly 
distinguished from each other, for they require the constitution to be 
framed by a convention, and they require the legislature of the same 
State to adopt the constitutional amendment. When, then, in the 
same acts, they again use the phrase "legislature of the State," 
they must be understood to use it in the same sense, and as distin- 
guished from a constitutional convention. But as to those legislative 
bodies which passed what are called ordinances of secession, by what- 
ever name they may have been called, I am of opinion that their 
members are properly comprehended within this disqualifying clause , 
for I can imagine no official legislative position in which the duty of 
allegiance was more distinctly violated. 



The next and more difficult inquiry is, Who is to be considered an 
officer of the United States, or an executive or judicial officer of any 
State, within the meaning of these clauses ? Various classes of officers 
are here intended — State officers and federal officers, and executive 
or judicial officers. No legislative officer is mentioned except a 
member of a State legislature or a member of Congress. The de- 
scriptions used as to other officers are, as to State officers, that they 
must be judicial or executive, and as to a federal officer the terms 
executive or judicial are not expressed. He is described simply as 
an officer of the United States. 

It has been shown that federal officers and State officers are classi- 
fied separately in the clauses of the act under consideration. I deem 
it profitable and conducive to a clear order to follow this classifica- 
tion. I shall accordingly first consider what State officers are included 
in the terms "executive or judicial." This phrase is twice used in 
these clauses, with the superadded description "m any State" in the 
first clause, and "o/"any State" in the second clause. I think the 
controlling term of description, if there is any repugnancy in the 
terms, must be taken to be the last, for that is used in the most com- 
prehensive clause, as to the very officers named in the first clause, 
and to others. Besides, it is the same term of description used in 
the act of Congress of 1789, declaring what State officers are re- 
quired to take the oath to support the Constitution of the United 
States, and in the 3d section of the constitutional amendment. Both 
use the same terms of description " executive and judicial officers of 
a State." 

The terms are so general and indefinite that they fail to express 
with sufficient certainty a designation of the persons intended to be 
reached. It is to be regretted, in a matter of so much importance, 
that the rule of designation adopted as to members of Congress and 
of a State legislature had not been followed up; or, if that were 
found impracticable, that some more definite general rules had not 
been declared. The uncertainty becomes manifest in the application 
of the law, and this uncertainty necessitates construction. The ne- 
cessity for construction, which arises from the generality of the law, 
cannot be better stated than in the language of Plowden : ' ' Though 
the words be general, they are to be reduced to a particularity by 
exposition, made according to the intent of the act ; those statutes 
which comprehend all things in the letter, the sages of the law have 
extended but to some things; those which generally prohibit all peo- 
ple from doing such an act, they have interpreted to permit some 
persons to do it; and those which include every person in the letter, 
they have adjudged to reach some persons only, all founded upon 
the intent; collected by considering the cause and necessity of the 
act, and comparing one part with another, and sometimes by foreign 
circumstances." 

I deem it proper here to fix some clear ideas of the general intent 
of these acts, and by what rule of construction, strict or liberal, that 
intent may best be arrived at. The intent, as expressed, is to enable 
the people of each of these States to frame a constitution for the 



State by the exercise of the right of suffrage. There are clauses of 
the act giving the right, by general terms of description, to the 
people generally, and especially to those who have never enjoyed the 
right before. There are other clauses of the act which, by general 
terms, take away this right of suffrage from those who have always 
enjoyed it. The rule of construction as to the clauses which give the 
right must be liberal, and, as to them, the general terms are not to 
be restricted ; but as to those clauses which derogate from the ex- 
isting right, the rule of construction must be strict, that none should 
be excluded who are not clearly within the letter and intent. 

1. I begin then with the inquiry whether officers of the militia of 
a State are embraced within these terms of description, and I have 
no doubt that they are not. Certainly Congress, as to the officers of 
a State, was not content to use the term at large and without qualifi- 
cation, but, as we see, intended to qualify the general term. If the 
purpose was to designate military officers, the usual words to manifest 
that intent would have been adopted, and the terms would have been 
the judicial and executive, the civil or military officers of the State. 
Accordingly we find when that was the purpose, as we see it was, in 
the third section of the constitutional amendment, known as Article 
XIY, Congress expressed that purpose very clearly. That section 
provides that "No person shall be a senator or representative in 
Congress, or elector of President and Vice President, or hold any 
office, civil or military, under the United States or under any State, 
who, having previously taken an oath as a member of Congress or as 
an officer of the United States, or as a member of any State legisla- 
ture, or as an executive or judicial officer of any State, to support the 
Constitution of the United States, shall have engaged in insurrection 
or rebellion against the same, or given aider comfort to the enemies 
thereof." 

This third section is expresslj" referred to more than once in these 
acts. It is made, in fact, a part of these acts. Its language is followed, 
word for word, in these disqualifying clauses, as far as was possible, ex- 
cept in the particular in which one is made to apply to eligibility and 
the other to the right to vote. When, therefore, we find that Con- 
gress, in declaring what persons shall be disfranchised from holding 
any office, express!}' includes military as well as civil officers, as in the 
third section of the amendment, and in providing what persons shall 
be disfranchised from voting who held any office, omit to men- 
tion military officers, we cannot escape the conclusion that mili- 
tary officers were not here within their contemplation. It is impossi- 
ble to imagine a case in which the construction from laws in pari ma- 
teria has a more cogent application; for it is evident here that the law- 
maker, in framing the disqualifications of the voter, took special cog- 
nizance of the third section of the amendment, and weighed it word by 
word, following it literally for the most part, and rejecting delibe- 
rately the very word intended to embrace a military officer. 

It must be borne in mind that we are here considering the class of 
military officers who were such prior to the rebellion, when the office 
was lawful, and who were known as officers of the militia — not that 



10 

class who became military officers during the rebellion. As to this 
last class, they all come under that other clause of disqualification 
which applies to participation in the rebellion. 

2. Having the inquiry thus circumscribed to civil officers, the 
question recurs, what civil officers are to be brought within the 
terms "executive or judicial officers of a State?" They clearly 
include, so far as executive officers are concerned, all such officers as 
are generally known by the proper description of State officers or 
officers of State. In one sense, and in a popular sense, the descrip- 
tion executive officers of a State is applicable to a well-known class: 
the governor, lieutenant governor, State auditor, treasurer, secretary, 
and State officials proper, who exercise executive functions at the seat 
of government. I am not prepared to say that only these proper 
State officials come within this term of description; nor am I pre- 
pared, as to judicial officers of a State, to limit the description to 
judges or courts whose jurisdiction extends over the entire State. 
I must content myself in saying of these officers, executive or judicial, 
that they are clearly within the meaning of the law. 

Now, changing the inquiry from an affirmative to a negative pro- 
cess: Such officers as usually pass under the description municipal 
do not come within the purview of the act, such as officers of cities, 
towns, villages, and subordinate municipal divisions, whether their 
functions are executive or judicial, or, as is sometimes the case, 
where the same officer acts in both capacities. 

Outside of these two representative classes, the first of which is 
clearly within, and the last of which is clearly without, the purview 
of these clauses, we find in each of these States a host of officers 
whose status is in some way to be determined. It is impossible here 
to proceed by way of enumeration, and to distinguish by name all 
those who are included and all those who are excluded. All that can 
be done is to establish some fixed rules. I feel the necessity of cir- 
cumspection here in saying who are included within the disfranchise- 
ment rather than in saying who are not included; for where there 
is doubt, according to the rule of construction which has been referred 
to, that doubt must be solved in favor of, rather than against, the 
right of the voter. 

The exclusion is all-comprehensive as to time, and applies, not 
only to those who were in office when the rebellion commenced, but 
to these who held the prohibited offices at an}' previous time, 
although they may have ceased to hold such office an indefinite 
number of years prior to the rebellion. It is founded on the idea of 
a breach of official trust due to the State, as the author or donor of 
the trust. It is founded on the idea of a breach of trust, not arising 
merely from allegiance as a citizen, but duty to the State in a 
direct official relation to that State, and through that to the federal 
government. So far as this act designates by name the persons who 
violated such a trust, it is that class to %vhose keeping the trust is 
especially confided — that is to say, the persons who were clothed with 
the legislative power. Where, as in this instance, there is a purpose 
of exclusion on a common ground, and one class is designated as com- 



11 

ing within the purpose, and other classes are left indefinite and only 
to be ascertained b}' construction, it is allowable to find the indefinite 
class by the rule of assimilation. 

We see, then, in this law a purpose of exclusion as to the three 
p^reat departments of a State, legislative, judicial, and executive. 
We see, further, that as to the legislative department, made up of a 
legislative body, composed of members and various officers apper- 
taining to such a body as a legislature, the exclusion is only of the 
high&r functionaries of that body, the members, and is not carried to 
its subordinate officers. The terms of exclusion are not the members 
and officers of a State legislature, but simply the members of a State 
legislature. As, therefore, the exclusion in the legislative depart- 
.ment has effect only upon the highest class in that department, it is 
safe to say the same policy of exclusion attaches rather to such officers 
as exercised functions of important trust in the executive and judicial 
departments than to those whose functions and duties are merely 
limited and subordinate. I have already called attention to the com- 
prehensiveness of these exclusions as to time. Now, to declare them 
equall}'' comprehensive as to persons, and to say that they embrace 
all officers, large and small, coming in any sense within the descrip- 
tion of executive or judicial officers, who have at any time during 
their lives held any one of these offices, would have this inevitable 
result, that in the formation of the constitution for a State by the 
agency of its own people, a large proportion, perhaps a majorit}', of 
the most intelligent and capable of the people would be excluded. 

There is no part of my duty, in attempting to give construction to 
these laws, in which I find m3'self involved in such painful uncer- 
tainty as in determining what officers outside of the classes already 
designated come within the just range of exclusion. I have said that, 
in addition to the class of officers who clearly come within the terms 
of the act -h-a judicial and executive officers of the State, and to those 
classes which comprehend militia officers and municipal officers, who 
clearly are not within the terms of the act, there remain a vast body 
of officers whose status is in some way to be defined. 

These are known in popular language by such terms of description 
as county, township, precinct officers. Their name is legion. Their 
functions and duties are for the most part strictly local. Some of 
them, such as sheriffs and justices of the county courts, have jurisdic- 
tion over the entire county. Others are restricted to the smallest 
civil subdivisions. I have directed abstracts to be prepared for each 
of these States, which will exhibit all these officers and the duties 
which appertain to them, and the form of oath required. 

I must reserve for further consideration, after the abstracts are 
made, the question whether all of them, or, if not all, what classes 
of these officers, come within the disqualification. As to all other 
executive or judicial officers who are not in popular language charac- 
terized as county officers, I incline to consider them as coming under 
the description of executive and judicial officers of a State within the 
meaning of these laws. 

1 deem it proper here, in reference to that class of officers, judicial 



12 

or executive, who are, by the rule I have laid down, brought within 
the operation of disfranchisement, to distinguish a class whose duties 
are not localized, who stand in direct relation to the State, and who, 
in my opinion, cannot properly be designated as executive or judi- 
cial officers of a State. I mean that class of persons who exercise 
special public duties rather in the nature of occasional employments 
than general and continuing official duty. This distinction between 
office and employment, and between an officer of a State and an 
agent of a State, is well established. Chief Justice Tilghman in 3 
Serg. and Raivle, 149, recognizes it in the case of commissioners ap- 
pointed to lay out roads and canals and other works of public im- 
provement. The question arose upon a section in the constitution 
of Pennsylvania, which provided " that the governor shall appoint 
all officers whose offices are established by this constitution, or sljall 
be established by law, and whose appointments are not herein other- 
wise provided for." The Chief Justice says, "it has never been as- 
certained, nor is it easy to ascertain, to what offices this power of 
appointment extends. I speak of offices created by law siiice the 
making of the constitution. The word office is of very vague and in- 
definite import. Everything concerning the administration of jus- 
tice, or the general interests of society^ may be supposed to be within 
the meaning of the constitution, especially if fees or emoluments are 
annexed to the office. But there are matters of temporary and local 
concern, which, although comprehended in the term office, have no-t 
been thought to be embraced by the constitution. And whcm offices 
of that kind have been created, the legislature has sometimes made 
the appointment in the law which created them, sometimes given the 
appointment to others than the governor, and sometimes given the 
power of removal to others, although the appointment was left to the 
governor. The officers of whom I am speaking are often described 
in acts of assembly by the name of commissioners — such, for in- 
stance, as are employed in the laying out of roads and canals and other 
works of a public nature. Yet all these perform a duty, or in other 
words exercise an officeP 

I cannot enumerate all the employments under State authority 
which, in my opinon, work no disfranchisement. 1 will name some 
by way of illustration, viz : boards of commissioners of public works, 
directors of State asylums, visitors of State universities,, directors of 
State penitentiaries. State directors of banks or other corporations^ 
special commissioners or agents appointed by the governor or other 
State authority to perform special duties, as examiners of banks, no- 
taries public, and commissioners to take acknowledgment of deeds. 

The rule laid down, and these illustrations, will perhaps be suffi- 
cient to determine who come within its operation. 

The next disqualifying clause is founded on the oath of office. The 
oath as incidental to the office is not mentioned in the first disqualify- 
ing clause, but the office alone. But, in the second clause, the oath 
is made to enter as a necessary element in order to work disfranchise- 
ment, and it is applied to the same classes of officers named in the 
first clause, and also to others not named in the first clause, that is to 



13 

officers of the United States. It is an oath to support the Constitu- 
tion of the United States, and it is clearl}- provided b}^ this chiuse 
that if this oath has been taken by a member of a State legislature, 
or by an executive or judicial oflScer of any State, then such person 
violating that oath and engaging in insurrection shall be disfranchised. 
There is some obscurity in these clauses, and room for doubt whether 
disqualification under the first clause would arise in the case of a 
member of a State legislature or any executive or judicial officer of 
any State who had not taken an oath to support the Constitution of 
the United States. I incline to the opinion that this oath is put as 
an essential thing, the breach of which by insurrection against the 
United States violates the trust imposed by it upon the officer. But 
this clause, so far as the executive or judicial officers of a State are 
concerned, does not enlarge the class subject to disfranchisement. 
The officer breaking the oath which works disfranchisement must also 
be a judicial or executive officer of a State, according to the rule here- 
inbefore established. 

I do not apprehend any practical question will arise here, for, by 
the Constitution of the United States, this oath is required to be ta- 
ken by "the members of the several State legislatures, and all ex- 
ecutive and judicial officers, both of the United States and of the 
several States," and in these ten States the same oath was required 
as to memb(5rs of the legislature and the executive and judicial offi- 
cers of the State. 

This brings me to the question, Who is to be considered "an officer 
of the United States," within the meaning of the clause under con- 
sideration ? Here the term officer is used in its most general sense, 
and without any qualification, as legislative, or executive, or judicial ; 
and, I think, as here used, it was intended to comprehend military as 
well as civil officers of the United States who had taken the pre- 
scribed oath. Inasmuch as the violation of the official oath and the 
official trust has relation to fealty to the United States, which is broken 
by rebellion against the United States, the reason is apparent for 
including all officers of the United States, and for making the dis- 
franchisement more general and comprehensive as to them, standing, 
as they do, in more direct relation and trust to the United States than 
the officers of a State. 

I now come to consider what is the meaning and scope of the dis- 
qualification arising upon that part of the oath which requires the per- 
son to state that he has not "engaged in insurrection or rebellion 
against the United States, or given aid or comfort to the enemies 
thereof." I must here repeat what has been said before, that to 
work disqualification two elements must concur: 

First. Holding the designated office. State or federal, accompanied 
by an official oath to support the Constitution of the United States ; 
and. 

Second. Engaging in rebellion against the United States, or giving 
aid or comfort to its enemies. Both these must not only concur, but 
they must concur in the order of time mentioned. First, the office 
and the oath, and "afterwards," engaging in rebellion, or giving aid 



14 

or comfort. A person who lias held an office within the meaning of 
this law, and has taken the official oath, and who has not afterwards 
participated in a rebellion, may very safely take this oath ; and so, too, 
the person who has fully participated in the rebellion, but has not, 
prior thereto, held an office and taken the official oath, may, with 
equal safety, take this oath . 

My duty here is simply one of construction. I do not deem it, 
proper to enter upon any question of the constitutionality of this part 
of the act. Taking it as granted, for the purpose of construction, 
that Congress has a right to impose such an oath, it is not only al- 
lowable, but imperative, that I keep in view its essential character- 
istics. 

It is something more than a legislative act in derogation of an ex- 
isting right. It is in effect a law w^hich takes awa}' an existing right 
as a consequence of acts done at a prior time, and which, at the time 
they were done, entailed no such consequences. In the late cases be- 
fore the Supreme Court of the United States upon the test oath pre- 
scribed by an act of Congress to be taken by lawyers, by which the 
exclusion from the right to practice their profession was made to arise 
upon prior participation in the rebellion, the court say : 

" As the oath prescribed cannot be taken by these parties, the act, 
as against them, operates as a legislative decree of perpetual exclu- 
sion. And exclusion from any of the professions, or any of the or- 
dinary avocations of life, for past conduct, can be regarded in no other 
light than as punishment for such conduct. The exaction of the oath 
is the mode provided for ascertaining the parties upon Avhom the act 
is intended to operate, and, instead of lessening, increases its objec- 
tionable character. All enactments of this kind partake of the nature 
of bills of pains and penalties." The court further say : "The de- 
privation of any rights, civil or political, previously enjoyed, may be 
punishment, the circumstances attending and the causes of the de- 
privation determining this fact." 

The characteristics of this clause of the act are, therefore, retro- 
spective, penal, and punitive. Of course there can be no question 
as to the rule of construction which is here to be applied. Those who 
are expressly brought within its operation cannot be saved from its 
operation. Where, from the generality of terms of description, or for 
any other reason, a reasonable doubt arises, that doubt is to be re- 
solved against the operation of the law and in favor of the voter. 

What acts, then, within the meaning of this law, make a party 
guilty of engaging in insurrection or rebellion against the United 
States, or of giving aid or comfort to the enemies thereof? The lan- 
guage here comprehends, not only the late rebellion, but every past 
rebellion or insurrection which has happened in the United States. 
So, too, it comprehends every foreign war in which the United States- 
has, at any time, been engaged. The first part of the sentence covers 
th6* case of domestic war existing in form of rebellion or insurrection, 
whilst the last part applies to foreign war. The words, giving aid and 
comfort to the enemies of the United States, are the same used in the 
constitutional definition of treason, and the enemies there meant must 



15 

be taken to be foreign enemies. These words, originally found in the 
early statutes of England against treason, have received that settled 
interpretation in the English and the American courts. They are 
sed in this act without any qualiification, and we give them full force 
and application when they are made to apply to adherence, or giving 
aid and comfort to foreign enemies. Such an act, as to the breach of 
the oath, or duty of allegiance, stands upon the same policy of dis- 
qualification as engaging in rebellion or civil war. A person, there- 
fore, who gave aid and comfort to our enemies in the war with Great 
Britain of 1812, and in the war with Mexico in 1847, would, in that 
particular, come within this clause. In laying down this rule, I do 
not forget that, for certain purposes and in a certain sense, every 
citizen in the rebel States, during the late rebellion, is to be consid- 
ered a public enemy ; as in respect to the liability of his property to 
capture as prize of war, and in respect to various acts of Congress 
passed during the rebellion, which, as to property, declare its liability 
to capture, forfeiture, or confiscation, when used in aid of the late 
rebellion. But wherever, in any of these acts of Congress, these 
terms, aid and comfort^ are used, in any other than the commonl}" re- 
ceived acceptation, some qualification or description is added to make 
them appl}- to the rebellion. Nevertheless, although I strongly in- 
cline to think that the aid and comfort here mentioned should strictly 
be confined to its acknowledged legal interpretation, I am not quite 
prepared to say that Congress may not have used it as applicable to 
the rebellion. I shall, therefore, allow it due weight in the next 
inquiry, in giving construction to the clause now to be considered. 
"We are now to inquire what is meant by engaging in insurrection 
or rebellion against the United States. The force of the term to en- 
gage carries the idea of active rather than passive conduct, and of 
voluntary' rather than compulsory action. Take, as an instance, a 
rebel soldier compelled to service by force of conscription. Take, 
a8 another instance, the case of a slave who, by the command of his 
master, or by military order, has served in the ranks or aided in the 
construction of military works. It would be an abuse of language to 
hold that in these instances the parties have "engaged" in rebellion 
within the meaning of that word as used in this law. But whilst, in 
my opinion, a conscript or slave, forced into the ranks or other mili- 
tary service is not included, it does not follow that other classes than 
those who actually levied war and voluntarily joined the ranks of the 
rebels are tobe excluded, taking it to be clear, that in the sense of this 
law persons may have engaged in rebellion without having actually 
levied war or taken arms. All those who in legislative or other official 
capacity were engaged in the furtherance of the common unlawful pur- 
pose, or persons who, in their individual capacity, have done any overt 
act for the purpose of promoting the rebellion, may well be said, in the 
meaning of this law, to have engaged in rebellion. All persons who, 
during the rebellion, acted in an official capacity where the duties 
of the office necessarily had relation to the support of the rebellion, 
such as members of rebel legislatures and of the rebel congress, 
and rebel conventions, diplomatic agents of the rebel confederacy, 



16 

or such other officials whose duties more especially appertained 
to the support of the rebel cause, must be held to come within the 
terms of exclusion. Officers in those rebel States who daring 
the rebellion discharged official duties not incident to war, but 
in the preservation of order and the administration of law, are not to 
be considered as thereby engaging in rebellion. The interests of hu- 
manity require such officers for the performance of such official con- 
duct in time of war or insurrection as well as in time of peace, and 
the performance of such duties can never be considered as criminal. 
I cannot bring myself to the conclusion that Congress could have 
meant that such purely civil and necessary offices involved the incum- 
bent in the guilt of insurrection. Nothing but the most cogent lan- 
guage, such as was used in the test oath for lawyers, could manifest 
such a purpose. The Supreme Court in construing that test oath, and 
in reference to the clause to which I have alluded, uses this language: 

"The third clause applies to the seeking, acceptance, or exercise, 
not only of offices created for the purpose of more effectually carrying 
on hostilities, but also of any of those offices which are required in 
every community, whether in peace or war, for the administration of 
justice and the preservation of order." 

I find no such purpose in the use of any of the terms of the act now 
under consideration. 

I am accordingly of opinion that the holding of a simple judicial 
office, or other executive offices or public employments as are of a 
purely civil character, such as county offices, municipal offices, and 
all others of a like nature, which were not " created for the purpose 
of more effectually carrying on hostilities," and which did not involve 
the performance of duties expressly in furtherance of the rebellion, 
do not, witliin the meaning of this part of the oath, fix on the incum- 
bent the guilt of engaging in the rebellion. 

So much for official participation. I now recur to what amounts to 
individual participation in the rebellion. In the attempt to arrive at 
the classes of persons, or of acts intended to be comprehended in the 
matter of engaging in rebellion, we must have due regard to the sub- 
ject-matter. Undoubtedly, although every rebellion against the Uni- 
ted States is comprehended, it is the late rebellion which almost, if 
not altogether, can be said to be the proper subject-matter — a rebel- 
lion which extended over eleven States of the Union, involving, more 
or less, millions of their people, continuing for more than four years, 
and maintained by a vast military authority, which, as to all these 
people for a time, and as to most of them during its continuance, ex- 
cluded them from all protection under the lawful government. The 
obligations of allegiance, when thus separated from the corresponding 
right of protection, and the breach of that allegiance, are necessarily 
modified under such circumstances. The obligation is less stringent, 
and a breach of that obligation less reprehensible, than in cases of 
temporary or local insurrection. Nor must we forget that through- 
out these rebel States there were large classes of their population 
more or less opposed to the rebellious movement, and who were yet 
more or less necessarily involved in its support. I have already 



17 

said that the language used in this act as to participation carries the 
idea of voluntary participation; and I am satisfied that these consid- 
erations, growing out of the nature of the rebellion, induced Congress 
to use the word "engage" in the sense of voluntary participation. 

When an insurrection by its continuance and power takes the form 
of a tie fad government, and prescribes and enforces laws over 
people within its territory, individual rights and obligations undergo 
an inevitable modification, and the rightful and displaced authority, 
when it again comes into place, must, in a measure, accommodate its 
action to circumstances, and consider many things as rightfully done 
which in a mere insurrection would have no color of legality. This 
principle is recognized by all civilized nations — has been especially 
enforced in England by statute, and by the decisions of courts as 
early as the reign of Henry the Seventh. Obedience to the de facto 
government established under a usurping monarch has been held not 
to involve a subject in the guilt of treason to the lawful king. Giv- 
ing due weight to these well established principles, 1 proceed with 
the inquir}'. 

I am of opinion that some direct overt act, done with the intent to 
further the rebellion, is necessary to bring the party within tha pur- 
view of and meaning of this law. Merely disl(^^al sentiments or ex- 
pressions are not sufficient. The person applying for registration is 
not required to clear himself from the taint of disloyalty. The mean- 
ing of Congress here becomes yet more evident wdien we look at the 
last clause of the prescribed oath. He is required to swear that he 
"will faithfully support the Constitution and obey the laws of the 
United States, and will, to the best of [his] ability, encourage others 
so to do." This part of the oath is not exculpatory, but promissory. 
It looks to the future, and not to the past, and the purpose is here 
manifest to omit, as to the right to vote, the disqualification arising 
from past disloyalty, put in the test oath as a disqualification from 
the right to exercise office. Mere acts of common humanity and 
charity cannot be considered as involving the party in participation 
in the rebellion. So, too, are forced contributions by the rebel au- 
thorities, or the compulsory payment of taxes in aid of the rebel cause. 
But wherever an act is done voluntarily in aid of the rebel cause, it 
would involve the person, and it must work disqualification under this 
law. Voluntary contributions in furtherance of the rebellion or sub- 
scriptions to the rebel loans, and even organized contributions of 
food or clothing, or necessary supplies, except of a strictly sanitary 
character, are to be classed with acts which disqualify. 

THE BOARD OF EEGISTRATION. 

The original act contains no provision as to the manner and time 
for holding the elections of delegates to the convention, or for ratifica- 
tion of the constitution framed by that convention, or for other pur- 
poses. The first section of the supplemental act provides that a reg- 
istration of the voters shall be made before the first of September, 
1867. The fourth and subsequent sections of this act pro' xde for the 

9 



18 

means -by wliicli this registration is to be effected. The commanding 
general is directed to "appoint as many boards of registration as may 
be necessary, consisting of three loyal officers or persons, to make and 
complete the registration, superintend the election, and make return 
to him of the votes, lists of voters, and of the persons elected as dele- 
gates by a plurality of the votes cast at said election; and upon re- 
ceiving said returns he shall open the same, ascertain tiie persons 
elected as delegates according to the returns of the officers wiio con- 
ducted said election, and make proclamation thereof ; and if a majority 
of the votes given on that question shall be for a convention, the com- 
manding general, within sixty da3'S from the date of election, shall 
notify the delegates to assemble in convention, at a time and place to 
be mentioned in the notification; and said convention when organized 
shall proceed to frame a constitution and civil government, according 
to the provisions of this act and the act to which it is supplementary ; 
and when the same shall have been so framed, said constitution shall 
be submitted by the convention for ratification to the persons regis- 
tered under the provisions of this act, at an election to be conducted 
by the officers cr persons appointed or to be appointed by the com- 
manding general, as hereinbefore provided, and to be held after the ex- 
piration of thirty day^ from the date of notice thereof, to be given by 
said convention; and the returns thereof shall be \nade to the com- 
manding general of the district." 

The sixtli section provides: "That all elections in the States men- 
tioned in the said 'act to provide for the more efficient government 
of the rebel States,' shall during the operation of said act be by ballot, 
and all officers making the said registration of voters and conducting 
said elections shall, before entering upon the discharge of their duties, 
take and subscribe the oath prescribed by the act approved July 
second, eighteen hundred and sixty-two, entitled 'An act to prescribe 
an oath of office:' Provided. That if any person shall knowingly and 
falsely take and subscribe any oath in this act prescribed, such person 
so offending and being thereof duly convicted, shall be subject to the 
pains, penalties, and disabilities which by law are provided for the 
punishment of wilful and corrupt perjur_y." 

The only oaths prescribed by this act are the oath to be taken by 
the person appl^'ing for registration and the oath to be taken by the 
persons composing the board of registration. 

The duties of the board are, first, to make and complete the reg- 
istration, and to superintend the elections. 

The first question is as to the duties and powers of the board in 
making and completing the registration. The first section provides 
that the commanding general "shall cause a registration to be made 
of the male citizens of the United States, twenty-one years of age 
and upwards, resident in each county or parish in the State or States 
included in his district, which registration shall include only those 
persons who are qualified to vote for delegates by the act aforesaid, 
and who shall have taken and subscribed the following oath or affirma- 
tion." By this oath the person applying for registration must swear 
or affirm to every qualification provided lor by the original act. The 
first question which arises here is, whether any other oath can be 



19 

required of the person applying for registration, or any oatli can be 
administered to any other person or persons touching the qualifica- 
tions of the applicants by tlie board of registration. The last clause 
of this first section provides as follows: " whicli oath or afHruiation 
may be administered by any registering ofiicer." The oath here re- 
ferred to is the oath to be taken by the person applying for registra- 
tion. 

I have very carefully examined all the provisions of this act, and I 
can find no authority for any other oath to be taken b}' any one, 
touching the qualifications of the applicant for registration, but only 
this oatli. I am clearly of opinion that any other oath touching the 
qualifications of the applicant would be extra judicial, and without 
authority, and that false swearing could not be assigned as perjury 
upon such unauthorized oath, especiall}' as the proviso to the sixtli 
section above quoted, which declares what false swearing shall amount 
to perjury, is expressly limited to "any oath in this act prescribed." 

In arriving at this conclusion, I have given due weight to that part 
of the first section of the act which declares that the " re«>;istration 
shall include only those persons who are qualified to vote for dele- 
gates by the act aforesaid, and who shall have taken and subscribed 
the following oath or affirmation." If we read these words by them- 
fc^elves, without regard to the other provisions of the act, the impres- 
sion is made that two things must concur to authorize the registration 
of the applicant; first, that he actually possesses the qualifications re- 
C[uired b}^ the original act; and second, that he shall take the pre- 
scribed oath. But when we look to the qualifications required of the 
applicant by the original act, and find that he is required by this oath 
to swear to every one of these qualifications, and that no authority 
is anywhere given to enter upon an}^ other inquiry as to his qualifica- 
tions, or to administer an}' otlier oath to him, or any oath to any other 
p'^rson touching his qualifications, and that his oath, and his oath 
alone, is punished with perjury, it is impossible to resist the conclu- 
sion that the oath itself is the sole and only test of the qualification 
of the applicant. When, therefore, a person applies to the board 
for registration, tha power of the board is confined to the adminis- 
tration of the prescribed oath, and if the applicant takes that, his 
name must go upon the registry. The board cannot enter upon tlie 
inquiry whether he has sworn truly or falsely. That inquiry must 
be reserved to the court which may afterwards have jurisdiction to 
try him on an indictment for perjury. 

Next, as to the duties of the board after the registration is com- 
pleted. They are to ''superintend tlie election and make return * 
* "■ of tlie votes, lists of voters, and of persons elected" to the 
commanding general. 

It is very clear from these provisions that, in superintending these 
elections, the duty of the board is to receive the votes of the per- 
sons whose na'mes are upon the registration, and to reject all others. 
There is no provision anywhere to surcharge or falsify or to add a 
.single name to the registration, or to erase a single name vvhich ap- 
pears upon it. 

HENRY STANBERY, Storney General. 



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